July 31, 2009

Post-Conviction Relief for Non-Citizens

Hundreds of thousands of non-citizens face immigration consequences for prior criminal convictions. These consequences affect legal and illegal immigrants alike, and can include deportation, denial of re-entry and denial of the chance for naturalization to the United States.

An area of criminal law exists that involves efforts to go back and modify, and sometimes vacate, these convictions. Lawyers generally call this post-conviction relief. Sometimes this involves seeking retroactively to reduce or change sentencing. An aggravated felony, for example, triggers immigration consequences when the sentence is for 365 days or longer. Modifying a sentence to, say, 364 days can sometimes stop a person's deportation.

But the most common form of post-conviction relief is a motion to vacate a prior conviction. And the most common basis for the motion is failure to advise the defendant of immigration consequences. The attorney will try to convince the court that at the time the client accepted a plea bargain and pled guilty or no contest, he was not apprised of the immigration ramifications. Had he been, he would not have entered the deal.

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July 30, 2009

Criminal Defense of Non-Citizens is Complex and Fraught with Peril

The intersection of criminal and immigration law is extremely complex and fraught with peril for attorneys and clients. A non-citizen facing criminal charges must worry not just about jail time and a criminal record, but also possibly losing his immigration status and being deported. Many criminal defense attorneys advise non-citizen clients to accept certain plea bargains, not realizing the long-term immigration consequences.

Understanding this area of the law starts with distinguishing two classes of immigrants: legal versus undocumented immigrants. The former group includes visa and green card holders given permission to stay in the United States. For legal immigrants, certain criminal convictions trigger deportation. Among these are aggravated felonies, domestic violence, drug crimes, firearm offenses and crimes of moral turpitude.

Undocumented immigrants (or illegal aliens) are foreigners living in the United States without permission. For this group, certain criminal convictions trigger inadmissibility, or denial of the opportunity to gain lawful immigration status. Among these are drug or prostitution crimes, crimes of moral turpitude, and multiple convictions. These crimes will also cause illegal aliens to be removed from the country and denied permission to re-enter.

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July 27, 2009

California Auto Burglary Requires a Break-in

The traditional common law definition of burglary is breaking and entering a structure with the intent of stealing goods or committing other crimes inside. Under Penal Code 459, California burglary law breaks with the common law by nixing the "breaking and entering" requirement. A person in this state still commits burglary when, for example, he walks into a house through a wide open door intending to commit a theft once inside.

But California law still retains the "breaking and entering" requirement with regard to one particular form of the crime: auto burglary. A person cannot be convicted of automobile burglary in this state unless it's proven that the vehicle was locked and secured and the burglar used force to gain entry.

By way of example, imagine that Bill enters a parked Camry believing there may be valuables in the car. But to his dismay, he finds nothing of value in the car and so he steals nothing. If the car had been locked, he committed an auto burglary. If the car had been unlocked, there's no auto burglary (though he still might be liable for a California criminal trespass charge). If Bill had stolen something, he'd also be liable for a theft offense.

The breaking and entering requirement is based on the legislative intent to make it more serious to break into a car than merely to steal something from it.

July 24, 2009

Criminal Liability for Stealing & Receiving Stolen Property

California Penal Code 496 defines Receiving Stolen Property as purchasing or otherwise taking possession of items you know to be stolen. As a general rule, this means someone else actually stole the goods and you subsequently received them. The original thief received stolen goods too when he stole them but he can't be charged with both the original theft and receiving stolen property. Otherwise Penal Code 496 could tag along with practically any theft charge.

However, California law allows one exception. This happens when a person steals an automobile and is later caught driving it. Under the case of People v Garza (35 Cal. 4th 866), this person can be charged with both Receiving Stolen Property and California automobile theft under Vehicle Code 10851.

The key is that for the state to add the PC 496 charge, it must be "post-theft driving." This means the person wasn't simply driving the car away from the place it was stolen (otherwise this would be part of the theft itself). But the courts have not clarified how much time must pass for the post-theft exception to apply. If the thief is caught driving the car several days later, it clearly would. But if just a few minutes, or an hour, or a few hours have passed, the law is not so clear.

July 24, 2009

Grand Theft vs. Petty Theft in California

The two most common California theft crimes are Penal Code 487 Grand Theft and Penal Code 488 Petty Theft. Both crimes are identical except for one distinction: the value of the property stolen. Theft of property worth more than $400 constitutes grand theft and property worth $400 or less is considered petty theft.

A grand theft charge is considerably more serious than petty theft. Penal Code 488 is a pure misdemeanor and carries a maximum sentence of 6 months county jail. Penal Code 487 on the other hand can be filed as a misdemeanor or felony. As a felony, California grand theft carries up to 3 years in state prison.

It makes sense that the value of the stolen merchandise should affect the seriousness of the charge; however, the $400 threshold is rather arbitrary. A mother who steals $405 worth of medicine to treat her ill children faces a much more serious charge than someone who, for example, steals $390 worth of video games just for fun.

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July 23, 2009

Medical Marijuana Will Now Be Taxed in Oakland

This week, a measure to tax medical marijuana in Oakland passed by a landslide: Eighty percent of participants in the special mail-in election voted to impose a 1.8% gross receipts tax on the city’s four licensed medical marijuana dispensaries.

Supporters of this new law hope that a tax on medical marijuana in Oakland will contribute to the state’s economic recovery. For every $1,000 in marijuana sales the facilities earn, they will have to pay about $18 in taxes.

The Medical Marijuana Program in California allows qualified patients, with a doctor’s recommendation, to apply for a state license to grow and possess small amounts of marijuana for medical purposes. To date, more than 32,000 licenses for the medical marijuana program in California have been issued to patients.

July 22, 2009

Jury Hangs in OC Murder for Hire Case

A Santa Ana jury hung yesterday in the murder trial of Sandra Jessee, accused of hiring someone to stab her husband who was ill with colon cancer. The prosecution argued that Jessee was frustrated with the victim's mounting medical bills, and that she gained by inheriting his 401k and life insurance payout.

The jury hung 11-to-1 in favor of the prosecution. Some of the majority jurors accused the dissenting juror of failing to deliberate and analyze the case properly. The dissenter apparently had trouble believing a key prosecution witness, a co-conspirator who had been offered a deal in exchange for his testimony.

Orange County criminal attorney John Murray believes conviction is likely in the retrial. "If they got 11 jurors this time, odds are they'll get 12 next time. But it goes to show that anything's possible in a jury trial, especially when the prosecution has to turn a witness to make its case." Deputy OC District Attorney Mike Murray says he plans to re-file murder charges and retry the case.

July 21, 2009

Man Faces Trial in Simi Valley Shooting Rampage

Jaime Parades pleaded not guilty today to murder and attempted murder in connection with a July 1st shooting rampage at a Simi Valley Dental Clinic. In the incident, Parades allegedly stormed the clinic, shooting his wife to death and critically injuring three others. He is currently being held without Ventura County bail.

The rampage shocked the relatively peaceful Simi Valley community. According to Ventura criminal defense lawyer Darrel York, public shooting rampages are becoming more common. York attributes this to many factors, including the prevalence of guns on the street, a declining economy, the isolation of people in our metropolitan areas, and America's culture of violence.

Parades faces in excess of 100 years to life in California State Prison. Although the case may go to trial, there's little doubt about his conviction. The prosecution has multiple eyewitnesses and a video taped confession. The Ventura County District Attorney has not yet indicated whether it will seek capital punishment.

July 14, 2009

Negligent Operator Suspensions Can Often be Avoided

A California driver who acquires too many points on his or her driving record can be declared a Negligent Operator and see their driver’s license suspended. This happens if you receive 4 points in a 12 month period, 6 points in a 24 month period, or 8 points in a 36 month period. Points are imposed for accidents, moving violations or criminal traffic offenses such as DUI.

Unfortunately many people facing a negligent operator suspension simply acquiesce. They don't realize that the suspension decision can be challenged, often successfully. Every California driver’s licensee has a right to a DMV hearing before this or most other license suspensions can be imposed.

The first step is demanding a hearing. This must be done within 10 days of receiving notice from the DMV. A California DMV hearing attorney can represent you at the hearing. You or your attorney can challenge the DMV's evidence and present "mitigating circumstances" (such as evidence that you were not totally at fault for an accident on your driving record). If the DMV ultimately finds in your favor, it may restrict rather than suspend your license, or let you off with just a warning.

July 13, 2009

Michael Jackson Doctors Could Face Murder

Although no charges have been filed yet, the doctors overseeing Michael Jackson could face prosecution--possibly even for murder--if it's determined that they knowingly and improperly administered to him a dangerous combination of drugs.

Dr. Alex Farshchian, a Miami Beach doctor who was treating Michael Jackson at the Neverland Ranch, is currently the focus of an LAPD inquiry. It's suspected that Farshchian was providing Demerol and Buprinex to the singer, both pain killers to which Jackson apparently was addicted.

A person can be charged with Second Degree Murder in California if he intentionally commits an act dangerous to human life, and deliberately acts with a "conscious disregard" for human life. Under Penal Code 187 (California murder law), there need not be any specific intent to kill the victim. Examples include a repeat drunk driver who causes an accident killing a third party, or a drug dealer whose buyer dies from an overdose.

If the Jackson doctors knew that the combination of drugs supplied to the singer was potentially fatal, and outside the bounds of acceptable medical practice, Los Angeles prosecutors could charge them with murder. A conviction carries a life sentence, with the possibility of parole.

July 10, 2009

Local Officials Continue to Attack Dispensaries

Under new Obama Administration policies, Federal authorities have stopped making raids on legitimate medical marijuana clinics. But officials in Los Angeles and other municipalities are picking up the slack. The city has enacted a 2-year moratorium on new dispensaries, and is using zoning law and local ordinances to frustrate the activities of existing ones.

By way of Proposition 215 and Senate Bill 420, California marijuana law allows people to possess, use and cultivate a limited amount of pot for qualified medical purposes. The medical marijuana user must get approval from a primary care physician and usually must obtain a county-issued marijuana health card.

In spite of the clear statement of California voters to allow legitimate medical marijuana in the state, dissenting local officials continue to use every resource in their arsenal to impinge on patients' rights and shut down dispensaries. On the contrary, cities should effectuate the will of the people and facilitate safe access to medical pot for qualified users.

July 8, 2009

Penal Code 470: California’s Forgery Law

Most people think of forgery as signing someone else’s name to a document without the person’s permission. But Penal Code 470 – California’s forgery law actually reads much broader than that.

In California, a person commits forgery when he knowingly alters, creates, or uses a written document, intending to commit a fraud. Said another way, forgery is creating or making use of a new document for the forger’s personal benefit and gain.

For example, a person who knowingly deposits a bad check in his bank account commits a forgery, even if he was not the one who signed it or created the false document. Likewise, a con artist who deceives a person into signing a fraudulent paper commits a forgery. As such, California’s forgery law is a sort of “catch all” that criminalizes a wide range of deceptive and fraudulent acts.

July 7, 2009

Reforms Needed to Hone the Reach of Proposition 36

In 2000, California overhauled its drug laws by enacting Proposition 36. The “Substance Abuse and Crime Prevention Act” allows most offenders convicted of casual drug use or possession to undergo treatment in lieu of any jail time. The policy goals of the new law were (1) to reduce drug abuse by treating addicts, and (2) to save scarce jail and prison space for more dangerous criminals.

Yet people convicted of selling narcotics and possession of narcotics for sale are ineligible to participate in Proposition 36. While it makes sense that major drug dealers should not escape punishment by feigning the need for treatment, the blanket exclusion of sales-based offenders from the program does not seem accurate.

Many offenders arrested for selling (or possessing for sale) a small quantity of drugs really are casual users selling petty amounts to fund their own drug addiction. Most of them are not dangerous and many of them could benefit much more from treatment than incarceration. Proposition 36 could be more effective if it gave judges discretion to examine the facts of each case and offer the program where appropriate, even for many defendants accused of selling narcotics.

July 6, 2009

Tough Sentencing for Drug Users in California

California is thought to offer one of the more lenient sentencing schemes in the nation for casual drug users. Offenders charged with first-offense drug possession almost always can escape custody time (and get the charges dismissed) through Penal Code 1000 drug diversion or Proposition 36. Both of these programs offer treatment as an alternative to jail and a criminal record.

But one California drug law stands out as unusually harsh: Health & Safety Code 11550: Being Under the Influence of a Controlled Substance. This law mandates a minimum 90 days of jail for anyone convicted. The law applies to anyone found to be intoxicated on either an illicit narcotic, or even a prescription drug for which the user does not have a lawfully issued prescription.

First time California drug crime offenders may opt for diversion or Proposition 36. Still, a “90 day minimum” is almost unheard of for any first offense under California law. Even a person convicted of selling cocaine can get probation with no mandatory jail time. So it’s unclear why the law punishes casual users so severely, more so in this case than even drug dealers.

July 3, 2009

California Marijuana Law: Easy on Users, Harsh on Sellers

California law draws a sharp distinction between marijuana for personal use versus cultivating marijuana or selling marijuana. The former triggers only a small fine and no jail time. The latter can land a person in state prison for years.

Under health & safety code 11357, a person possessing less than an ounce of pot can be punished by no more than a $100 fine. But if he tries to sell the weed or is found to possess the marijuana for sale, he can be charged with a felony and sent to prison for up to 3 years.

The policy aims of the legislature are clear: give casual users no more than a slap on the wrist, but go after growers and sellers with a fierce sword. In fact, the penalties for selling or possessing for sale marijuana nearly match those pertaining to illicit drugs such as cocaine or heroin.

Not only are these laws inconsistent, but police, prosecutors and courts spend hundreds of millions of dollars each year enforcing marijuana "crimes." This occurs in spite of ample evidence that marijuana is a benign substance that actually relieves stress and provides medical benefits.

July 1, 2009

"Resisting Arrest" is Broadly Defined

California Penal Code 148 (a)(1) defines the offense commonly known as "resisting arrest." This crime most frequently gets charged in a situation where a police officer goes to arrest someone, and the person struggles physically to avoid being taken into custody. Police then have to apply greater force to subdue the suspect.

But California Penal Code 148 reads broader than just the traditional notion of "resisting arrest." It applies to situations where a suspect is "resisting, delaying or otherwise obstructing" a peace officer or emergency medical technician in performing his/her duties. Basically this means anything that thwarts a peace officer in conducting an investigation and facilitating arrest qualifies as “resisting arrest.” Other examples would include providing a false identity to an arresting officer or filing a false police report.

Penal Code 148 is a California misdemeanor that could land a person in jail for up to one year. Many of these cases involve a police officer's word against a suspect's word. In that situation, defense attorneys will want to conduct a "Pitchess Motion" to see the entire personnel and complaint history of the officer. It may turn out the cop has been accused in the past of excessive force and making false accusations against suspects. If so, the defense can use this to impeach the officer's credibility, and often get the resisting arrest case reduced or dismissed.